BILL NUMBER: SB 1715	CHAPTERED  07/24/00

	CHAPTER   207
	FILED WITH SECRETARY OF STATE   JULY 24, 2000
	APPROVED BY GOVERNOR   JULY 24, 2000
	PASSED THE ASSEMBLY   JULY 6, 2000
	PASSED THE SENATE   APRIL 13, 2000
	AMENDED IN SENATE   MARCH 30, 2000

INTRODUCED BY   Senator Ortiz

                        FEBRUARY 23, 2000

   An act to amend and repeal Section 1347 of the Penal Code,
relating to child witnesses.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1715, Ortiz.  Child witness:  closed circuit television.
   Existing law authorizes a minor under the age of 13 years, to give
testimony by way of a closed-circuit television under specified
circumstances and procedures if the minor's testimony will involve a
recitation of the facts under either one of 2 circumstances, namely
(1) an alleged sexual offense committed on or with that minor or (2)
the minor is a victim of a violent felony as defined.  The statute is
operative until January 1, 2001, and on that date is repealed.
Effective January 1, 2001, this provision would only apply under the
first circumstance, namely if the minor will testify regarding an
alleged sexual offense committed on or with that minor.
   This bill would extend the sunset provision to January 1, 2003,
thereby extending the operation of that statute immediately.  It
would also amend the later provision to take effect January 1, 2003.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1347 of the Penal Code, as amended by Section
1.5 of Chapter 670 of the Statutes of 1998, is amended to read:
   1347.  (a) It is the intent of the Legislature in enacting this
section to provide the court with discretion to employ unusual court
procedures to protect the rights of a child witness, the rights of
the defendant, and the integrity of the judicial process.  In
exercising its discretion, the court necessarily will be required to
balance the rights of the defendant or defendants against the need to
protect a child witness and to preserve the integrity of the court's
truthfinding function.  This discretion is intended to be used
selectively when the facts and circumstances in the individual case
present compelling evidence of the need to use these unusual
procedures.
   (b) Notwithstanding any other law, the court in any criminal
proceeding, upon written notice by the prosecutor made at least three
days prior to the date of the preliminary hearing or trial date on
which the testimony of the minor is scheduled, or during the course
of the proceeding on the court's own motion, may order that the
testimony of a minor 13 years of age or younger at the time of the
motion be taken by contemporaneous examination and cross-examination
in another place and out of the presence of the judge, jury,
defendant or defendants, and attorneys, and communicated to the
courtroom by means of closed-circuit television, if the court makes
all of the following findings:
   (1) The minor's testimony will involve a recitation of the facts
of either of the following:
   (A) An alleged sexual offense committed on or with the minor.
   (B) The minor is a victim of a violent felony, as defined in
subdivision (c) of Section 667.5.
   (2) The impact on the minor of one or more of the factors
enumerated in subparagraphs (A) to (D), inclusive, is shown by clear
and convincing evidence to be so substantial as to make the minor
unavailable as a witness unless closed-circuit television is used.
   (A) Threats of serious bodily injury to be inflicted on the minor
or a family member, of incarceration or deportation of the minor or a
family member, or of removal of the minor from the family or
dissolution of the family, in order to prevent or dissuade the minor
from attending or giving testimony at any trial or court proceeding,
or to prevent the minor from reporting the alleged sexual offense or
from assisting in criminal prosecution.
   (B) Use of a firearm or any other deadly weapon during the
commission of the crime.
   (C) Infliction of great bodily injury upon the victim during the
commission of the crime.
   (D) Conduct on the part of the defendant or defense counsel during
the hearing or trial that causes the minor to be unable to continue
his or her testimony.
   In making the determination required by this section, the court
shall consider the age of the minor, the relationship between the
minor and the defendant or defendants, any handicap or disability of
the minor, and the nature of the acts charged.  The minor's refusal
to testify shall not alone constitute sufficient evidence that the
special procedure described in this section is necessary to obtain
the minor's testimony.
   (3) The equipment available for use of closed-circuit television
would accurately communicate the image and demeanor of the minor to
the judge, jury, defendant or defendants, and attorneys.
   (c) If the court orders the use of closed-circuit television,
two-way closed-circuit television shall be used, except that if the
impact on the minor of one or more of the factors enumerated in
subparagraphs (A) to (D), inclusive, of paragraph (2) of subdivision
(b), is shown by clear and convincing evidence to be so substantial
as to make the minor unavailable as a witness even if two-way
closed-circuit television is used, one-way closed-circuit television
may be used.  The prosecution shall give the defendant or defendants
at least 30 days written notice of the prosecution's intent to seek
the use of one-way closed-circuit television, unless good cause is
shown to the court why this 30-day notice requirement should not
apply.
   (d) (1) The hearing on a motion brought pursuant to this section
shall be conducted out of the presence of the jury.
   (2) Notwithstanding Section 804 of the Evidence Code or any other
law, the court, in determining the merits of the motion, shall not
compel the minor to testify at the hearing; nor shall the court deny
the motion on the ground that the minor has not testified.
   (3) In determining whether the impact on an individual child of
one or more of the four factors enumerated in paragraph (2) of
subdivision (b) is so substantial that the minor is unavailable as a
witness unless two-way or one-way closed-circuit television is used,
the court may question the minor in chambers, or at some other
comfortable place other than the courtroom, on the record for a
reasonable period of time with the support person, the prosecutor,
and defense counsel present.  The defendant or defendants shall not
be present.  The court shall conduct the questioning of the minor and
shall not permit the prosecutor or defense counsel to examine the
minor.  The prosecutor and defense counsel shall be permitted to
submit proposed questions to the court prior to the session in
chambers.  Defense counsel shall be afforded a reasonable opportunity
to consult with the defendant or defendants prior to the conclusion
of the session in chambers.
   (e) When the court orders the testimony of a minor to be taken in
another place outside of the courtroom, the court shall do all of the
following:
   (1) Make a brief statement on the record, outside of the presence
of the jury, of the reasons in support of its order.  While the
statement need not include traditional findings of fact, the reasons
shall be set forth with sufficient specificity to permit meaningful
review and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.
   (2) Instruct the members of the jury that they are to draw no
inferences from the use of closed-circuit television as a means of
facilitating the testimony of the minor.
   (3) Instruct respective counsel, outside of the presence of the
jury, that they are to make no comment during the course of the trial
on the use of closed-circuit television procedures.
   (4) Instruct the support witness, outside of the presence of the
jury, that he or she is not to coach, cue, or in any way influence or
attempt to influence the testimony of the minor.
   (5) Order that a complete record of the examination of the minor,
including the images and voices of all persons who in any way
participate in the examination, be made and preserved on videotape in
addition to being stenographically recorded.  The videotape shall be
transmitted to the clerk of the court in which the action is pending
and shall be made available for viewing to the prosecuting attorney,
the defendant or defendants, and his or her attorney during ordinary
business hours.  The videotape shall be destroyed after five years
have elapsed from the date of entry of judgment.  If an appeal is
filed, the tape shall not be destroyed until a final judgment on
appeal has been ordered.  Any videotape that is taken pursuant to
this section is subject to a protective order of the court for the
purpose of protecting the privacy of the witness.  This subdivision
does not affect the provisions of subdivision (b) of Section 868.7.
   (f) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, only the minor, a support person
designated pursuant to Section 868.5, a nonuniformed bailiff, and,
after consultation with the prosecution and the defense, a
representative appointed by the court, shall be physically present
for the testimony.  A videotape shall record the image of the minor
and his or her testimony, and a separate videotape shall record the
image of the support person.
   (g) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, the minor shall be brought into
the judge's chambers prior to the taking of his or her testimony to
meet for a reasonable period of time with the judge, the prosecutor,
and defense counsel.  A support person for the minor shall also be
present.  This meeting shall be for the purpose of explaining the
court process to the child and to allow the attorneys an opportunity
to establish rapport with the child to facilitate later questioning
by closed-circuit television.  No participant shall discuss the
defendant or defendants or any of the facts of the case with the
minor during this meeting.
   (h) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, nothing in this section
prohibits the court from ordering the minor to be brought into the
courtroom for a limited purpose, including the identification of the
defendant or defendants as the court deems necessary.
   (i) The examination shall be under oath, and the defendant or
defendants shall be able to see and hear the minor witness and if
two-way closed-circuit television is used, the defendant's image
shall be transmitted live to the witness.
   (j) Nothing in this section affects the disqualification of
witnesses pursuant to Section 701 of the Evidence Code.
   (k) The cost of examination by contemporaneous closed-circuit
television ordered pursuant to this section shall be borne by the
court out of its existing budget.
   (l) The Judicial Council shall prepare and submit to the
Legislature, on or before December 31, 2000, a report on the
frequency of use and effectiveness of closed-circuit testimony.
   (m) This section shall remain in effect only until January 1,
2003, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2003, deletes or extends
that date.
  SEC. 2.  Section 1347 of the Penal Code, as added by Section 1.6 of
Chapter 670 of the Statutes of 1998, is amended to read:
   1347.  (a) It is the intent of the Legislature in enacting this
section to provide the court with discretion to employ unusual court
procedures to protect the rights of a child witness, the rights of
the defendant, and the integrity of the judicial process.  In
exercising its discretion, the court necessarily will be required to
balance the rights of the defendant or defendants against the need to
protect a child witness and to preserve the integrity of the court's
truthfinding function.  This discretion is intended to be used
selectively when the facts and circumstances in the individual case
present compelling evidence of the need to use these unusual
procedures.
   (b) Notwithstanding any other law, the court in any criminal
proceeding, upon written notice by the prosecutor made at least three
days prior to the date of the preliminary hearing or trial date on
which the testimony of the minor is scheduled, or during the course
of the proceeding on the court's own motion, may order that the
testimony of a minor 13 years of age or younger at the time of the
motion be taken by contemporaneous examination and cross-examination
in another place and out of the presence of the judge, jury,
defendant or defendants, and attorneys, and communicated to the
courtroom by means of closed-circuit television, if the court makes
all of the following findings:
   (1) The minor's testimony will involve a recitation of the facts
of an alleged sexual offense committed on or with the minor.
   (2) The impact on the minor of one or more of the factors
enumerated in subparagraphs (A) to (D), inclusive, is shown by clear
and convincing evidence to be so substantial as to make the minor
unavailable as a witness unless closed-circuit television is used.
   (A) Threats of serious bodily injury to be inflicted on the minor
or a family member, of incarceration or deportation of the minor or a
family member, or of removal of the minor from the family or
dissolution of the family, in order to prevent or dissuade the minor
from attending or giving testimony at any trial or court proceeding,
or to prevent the minor from reporting the alleged sexual offense or
from assisting in criminal prosecution.
   (B) Use of a firearm or any other deadly weapon during the
commission of the crime.
   (C) Infliction of great bodily injury upon the victim during the
commission of the crime.
   (D) Conduct on the part of the defendant or defense counsel during
the hearing or trial that causes the minor to be unable to continue
his or her testimony.
   In making the determination required by this section, the court
shall consider the age of the minor, the relationship between the
minor and the defendant or defendants, any handicap or disability of
the minor, and the nature of the acts charged.  The minor's refusal
to testify shall not alone constitute sufficient evidence that the
special procedure described in this section is necessary to obtain
the minor's testimony.
   (3) The equipment available for use of closed-circuit television
would accurately communicate the image and demeanor of the minor to
the judge, jury, defendant or defendants, and attorneys.
   (c) If the court orders the use of closed-circuit television,
two-way closed-circuit television shall be used, except that if the
impact on the minor of one or more of the factors enumerated in
subparagraphs (A) to (D), inclusive, of paragraph (2) of subdivision
(b), is shown by clear and convincing evidence to be so substantial
as to make the minor unavailable as a witness even if two-way
closed-circuit television is used, one-way closed-circuit television
may be used.  The prosecution shall give the defendant or defendants
at least 30 days' written notice of the prosecution's intent to seek
the use of one-way closed-circuit television, unless good cause is
shown to the court why this 30-day notice requirement should not
apply.
   (d) (1) The hearing on a motion brought pursuant to this section
shall be conducted out of the presence of the jury.
   (2) Notwithstanding Section 804 of the Evidence Code or any other
law, the court, in determining the merits of the motion, shall not
compel the minor to testify at the hearing; nor shall the court deny
the motion on the ground that the minor has not testified.
   (3) In determining whether the impact on an individual child of
one or more of the four factors enumerated in paragraph (2) of
subdivision (b) is so substantial that the minor is unavailable as a
witness unless two-way or one-way closed-circuit television is used,
the court may question the minor in chambers, or at some other
comfortable place other than the courtroom, on the record for a
reasonable period of time with the support person, the prosecutor,
and defense counsel present.  The defendant or defendants shall not
be present.  The court shall conduct the questioning of the minor and
shall not permit the prosecutor or defense counsel to examine the
minor.  The prosecutor and defense counsel shall be permitted to
submit proposed questions to the court prior to the session in
chambers.  Defense counsel shall be afforded a reasonable opportunity
to consult with the defendant or defendants prior to the conclusion
of the session in chambers.
   (e) When the court orders the testimony of a minor to be taken in
another place outside of the courtroom, the court shall do all of the
following:
   (1) Make a brief statement on the record, outside of the presence
of the jury, of the reasons in support of its order.  While the
statement need not include traditional findings of fact, the reasons
shall be set forth with sufficient specificity to permit meaningful
review and to demonstrate that discretion was exercised in a careful,
reasonable, and equitable manner.
   (2) Instruct the members of the jury that they are to draw no
inferences from the use of closed-circuit television as a means of
facilitating the testimony of the minor.
   (3) Instruct respective counsel, outside of the presence of the
jury, that they are to make no comment during the course of the trial
on the use of closed-circuit television procedures.
   (4) Instruct the support witness, outside of the presence of the
jury, that he or she is not to coach, cue, or in any way influence or
attempt to influence the testimony of the minor.
   (5) Order that a complete record of the examination of the minor,
including the images and voices of all persons who in any way
participate in the examination, be made and preserved on videotape in
addition to being stenographically recorded.  The videotape shall be
transmitted to the clerk of the court in which the action is pending
and shall be made available for viewing to the prosecuting attorney,
the defendant or defendants, and his or her attorney during ordinary
business hours.  The videotape shall be destroyed after five years
have elapsed from the date of entry of judgment.  If an appeal is
filed, the tape shall not be destroyed until a final judgment on
appeal has been ordered.  Any videotape that is taken pursuant to
this section is subject to a protective order of the court for the
purpose of protecting the privacy of the witness.  This subdivision
does not affect subdivision (b) of Section 868.7.
   (f) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, only the minor, a support person
designated pursuant to Section 868.5, a nonuniformed bailiff, and,
after consultation with the prosecution and the defense, a
representative appointed by the court, shall be physically present
for the testimony.  A videotape shall record the image of the minor
and his or her testimony, and a separate videotape shall record the
image of the support person.
   (g) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, the minor shall be brought into
the judge's chambers prior to the taking of his or her testimony to
meet for a reasonable period of time with the judge, the prosecutor,
and defense counsel.  A support person for the minor shall also be
present.  This meeting shall be for the purpose of explaining the
court process to the child and to allow the attorneys an opportunity
to establish rapport with the child to facilitate later questioning
by closed-circuit television.  No participant shall discuss the
defendant or defendants or any of the facts of the case with the
minor during this meeting.
   (h) When the court orders the testimony of a minor to be taken in
another place outside the courtroom, nothing in this section
prohibits the court from ordering the minor to be brought into the
courtroom for a limited purpose, including the identification of the
defendant or defendants as the court deems necessary.
   (i) The examination shall be under oath, and the defendant or
defendants shall be able to see and hear the minor witness, and if
two-way closed-circuit television is used, the defendant's image
shall be transmitted live to the witness.
   (j) Nothing in this section affects the disqualification of
witnesses pursuant to Section 701 of the Evidence Code.
   (k) The cost of examination by contemporaneous closed-circuit
television ordered pursuant to this section shall be borne by the
court out of its existing budget.
   (l) This section shall become operative on January 1, 2003.
